Bank of New Orleans and Trust Co. v. Reed Printing & Custom Graphics, Ltd.

• Decision Date: 02 June 1981
• Docket Number: No. 11774,11774
• Citation: Bank of New Orleans and Trust Co. v. Reed Printing & Custom Graphics, Ltd., 399 So.2d 1260 (La. App. 1981)
• Court: Court of Appeal of Louisiana
• Parties: The BANK OF NEW ORLEANS AND TRUST COMPANY, v. REED PRINTING & CUSTOM GRAPHICS, LTD., et al.

Page 1260

399 So.2d 1260

The BANK OF NEW ORLEANS AND TRUST COMPANY, v. REED PRINTING & CUSTOM GRAPHICS, LTD., et al.

No. 11774.

Court of Appeal of Louisiana, Fourth Circuit.

June 2, 1981.

Robert T. Wakefield, Newman & Drolla, New Orleans, for Bank of New Orleans & Trust Co., plaintiff-appellee.

Floyd J. Reed, Trial Atty., Reed & Reed, New Orleans, for Bryan J. Reed, defendant-appellant.

Before GULOTTA, BOUTALL and SCHOTT, JJ.

BOUTALL, Judge.

This appeal arises from a judgment of the trial court awarding to the plaintiff the balance due on a loan made by the plaintiff to the defendant.

The facts before us indicate that the plaintiff, The Bank of New Orleans and Trust Co. (hereinafter referred to as BNO) entered into an installment loan agreement with Reed Printing and Custom Graphics Ltd. (hereinafter referred to as RPCG) on November 26, 1977 wherein the former agreed to lend $8,000 to the latter at the rate of 10% interest. In connection with this loan RPCG gave BNO a negotiable promissory note for the amount of the principal and the interest. This note was endorsed individually by the other defendant in this matter namely Byron J. Reed. RPCG became delinquent in its installment payments in October and November of 1978. Pursuant to the terms of the loan agreement, BNO filed suit against both RPCG and Reed seeking the remaining balance on the loan. Upon trial of this matter the lower court entered judgment in favor of BNO in the sum of $6,814.88 plus interest and attorney's fees. RPCG was found liable for the principal sum, the interest and the attorney's fees and Reed was held liable in solido for the principal sum only.

On appeal there are two basic issues presented for our consideration. The first one concerns the contention by the defendants that the trial court committed error in failing to require the plaintiff to fully comply with the defendant's subpoena duces tecum request. The other one concerns the argument that the lower court improperly applied the Louisiana law of usury.

Regarding the first issue LSA-C.C.P. Art. 1354 permits the trial court to vacate or modify a subpoena duces tecum request if it is unreasonable or oppressive. This article states in pertinent part:

"A subpoena may order a person to appear and/or produce at the trial or hearing, books, papers, documents, or any other tangible things in his possession or under his control, if a reasonably accurate description thereof is given; but the court in which the action is pending in its discretion may vacate or modify the subpoena if it is unreasonable or oppressive."

The Louisiana jurisprudence in interpreting this statute has indicated that a subpoena duces tecum request is limited to information that is relevant or necessary to the case before the court. In Re Kohn, 357 So.2d 279, (La.App. 4th Cir. 1979); Keiffe v. La Salle Realty Co., 112 So. 799, 163 La. 824 (1927).

Prior to trial the defendants issued to BNO a subpoena duces tecum requesting not just the records in connection with the loan transaction at issue but also records of any and all transactions entered into between the two parties. This subpoena provided as follows:

"1. Records of any and all loans, renewals of loans, and re-financing of loans had by Bank of New Orleans & Trust Company with Bryan J. Reed and Reed Printing and Custom Graphics, Ltd. from 1974 through the current date.

"2. Records of all payments made by or on behalf of Bryan J. Reed and Reed Printing and Custom Graphics, Ltd. to Bank of New Orleans & Trust Company showing apportionment of payments to principal, interest, late charges and the amounts and dates...